Section 41 - Limitations on Cross Examination



The sexual history of a witness, in particular where there may have been previous allegations, is an area that people are regularly keen to explore during questioning by the defence. However, there are substantial limitations on what can be asked. 

Section 41 of the Youth Justice and Criminal Evidence Act 1999 states that questioning regarding previous sexual behaviour may not be asked without leave of the Court. Leave (permission) will only be granted in certain circumstances. This has become an increasingly important area of law and was developed substantially in the case involving professional footballer, Ched Evans. 

The approach to be taken to Section 41 differs as to what the defence (or matter in issue) is in the particular case, the main difference being where consent is the defence.

Subsection (3) (b) states that if it is an issue of consent it will only be admissible if the sexual behaviour that the evidence/question relates to is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused.

Alternatively, if the sexual behaviour is so similar to the allegation or other sexual behaviour from the time of the alleged offence. 

The meaning of similarity does not mean “strikingly similar” as it has done in previous legislation, it is largely a question of fairness and the safety of the conviction. 

If the issue is not consent, then the sole question to be determined by a Judge is whether it is relevant to an issue in the case. The final gateway is where the evidence relates to that which has been admitted into evidence by the Prosecution. 

Section 42(1)(c) of the 1999 Act provides that “sexual behaviour” means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused’.

In cases involving allegations of sexual behaviour, it is extremely important to have a representative who is familiar with Section 41 and how it operates. Rhys recently was instructed in the case of R v S which involved various applications under Section 41 as the complainant had made several previous allegations of rape. S was acquitted following an 8 day trial at Wood Green Crown Court.